which reliance can be placed is to require the plaintiff to furnish proof that the payment of the premium at the time was waived by the understanding or agreement between the parties, and it must appear that such was the understanding of both parties. It is not enough for the assured to understand the payment of the premium to be waived; the underwriter must also have so understood. In other words, the minds of the parties must meet upon the subject matter of the waiver of the premium." (Hambleton v. Home Ins. Co., 6 Biss. 91.) And the Supreme Court of Texas also declares that "A waiver to be operative must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop parties from insisting upon the perform ance of the contract or forfeiture of the conditions." (Merchants Mut. Ins. Co. v. Lacroix, 45 Tex. 158.) But the Supreme Court of the United States has held that the doctrine of estoppel can only be applied in respect to representations of a party to prevent their operation as a fraud upon one who has been led to rely upon them. (Union Mutual Life Ins. Co. v. Mowry, 96 U. S. 544.) Therefore upon neither of these grounds can the decisions holding testimony of this character admissible be correct. The admissibility of such testimony cannot be sustained upon admitted fundamental principles and the application of logical reasoning. Either the decisions holding the contrary in regard to other contracts are incorrect and unsound, or those holding that parol testimony is admissible to contradict or vary the terms of a written contract of indemnity are incorrect and unsound. Both cannot be correct, unless it be that insurance contracts are to be construed upon different grounds or principles than contracts of every other character. Parties entering into an insurance contract must be competent, as in contracts of every character. This is essential to the validity of the contract. If the assured are not children, or idiots, or non compos mentis, they are competent. If they are competent, then they should be treated by the courts as such, and be held to the observance of their obligations and the consequence of their non-observance of them. It would be more consistent to base the decision on sympathy for the assured. It would be better, however, to be governed by the principle stated by Sir Henry Hobart, who has been characterized as a man of great authority and dignity; who, to the most accurate eloquence, joined a superlative knowledge of law, and was a judge of consummate integrity. judgment should take counsel of my interest or affection I should be of another mind, but I am bound within the former rules of justice, precedents, religion and prudence; justice, suum cuique tribuere; precedents, stat super semitas antiquas; religion, merito summa habetur ratio quae pro religione facit; prudence, quod dubitas ne feciris; de non apparantibus et non exisentibus eadem est ratio." In a number of States the Legislature has prescribed the forms of insurance contracts that shall be executed in such States. These are called standard policies. They in fact contain practically the same provisions, conditions and requirements that were embraced in the policies that have been in use and prepared by the insurance companies themselves for many years. While unquestionably the law prescribing such forms of contract is unconstitutional upon a number of grounds, but particularly upon the ground that no Legislature has a right to insult the intelligence and manhood of American citizenship by extending a guardianship over the citizens, and prescribing the form of contract in regard to a particular subjectmatter, as if the parties to the contract were either unable or incompetent, or had not a right to enter into a contract embracing terms agreed upon between them in relation to any lawful matter, insurance or otherwise, the insurance companies have not questioned the constitutionality of these acts prescribing the form of the policy, because from the courts they have obtained a more just construction of the policy. Courts have held that effect should be given to provisions in "standard policies," and that if vio lated the policy should be void that refused to give effect to identical provisions in policies that were prepared by the companies. The Court of Appeals of New York and the Supreme Courts of Michigan and Wisconsin, where standard policies have been prescribed, have given full effect to the provisions in those policies in holding particularly that there could be no change in any of the conditions or provisions of the policy, except they were in writing, indorsed thereon or added thereto, signed by a representative of the company. The Supreme Court of this State has refused to give such effect or construction to standard policies in this State. In holding that parol evidence is admissible to contradict or vary the terms of a written contract, where it is a policy of insurance, the Supreme and Appellate Courts in this State stand in a decided minority, and if there is any truth in the statement that wisdom resides with the minority, our courts can be congratulated upon being exceedingly wise. Another fundamental principle in the law of contracts is mutuality. As tersely stated by Bishop on Contracts, "Unless both parties are bound so that an action could be maintained by either against the other for breach, neither will be bound. This proposition is absolutely axiomatic, not admitting of being overthrown by authorities, so long as the law requires something of value as a consideration; for where it is admitted that there is nothing for A's promise to rest on but B's promise, if B has not promised, A's promise rests on nothing and is void. There may be cases in seeming contradiction to this; if there are any really so, they are not to be followed." (Bishop on Contracts, sec. 78.) liable on his premium note or under the provisions valid under the laws of the latter State. So in re All the States have prescribed conditions under which insurance companies organized under the laws of other States or countries may be permitted to transact business in the States respectively, and de-gard to a note that provides for the payment of a claring that it shall be unlawful for such companies to transact insurance business in the State, or for anyone to act as agent for such company in the transaction of insurance business in the State without complying with the conditions imposed by law. rate of interest that is usurious under the laws of a State in which its collection is sought to be enforced, if not in violation of the laws for that reason in a State where it was executed. A contract is held to have been executed or consummated when either the acceptance of the proposition is placed in the post-office, or when the contract itself has been placed in the post-office addressed by the one party to the other, with the necessary postage stamps affixed to insure its carriage by mail. In the case of Lamb, assignee of Winnesheik Ins. Co. v. Bowser, Judge Gresham, as district judge, held that the maker of the premium note was liable, and the collection of the note could be enforced when application for the insurance and the premium note had been sent from Indiana to the insurance company at its office in Freeport, Ill., and there accepted by the company and the policy sent by mail to Bowser, in Indiana, upon the principle that the Winnesheik Insurance Co., had the right to transact business in the State of Illinois, and that the contract was executed when the policy was placed in the post-office; and if valid in this State, then it must be held to be valid in the state of Indiana; and if binding upon one party by reason of its validity, it was binding upon the other. Where insurance has been effected by mutual insurance companies on property and for parties in the States where they have not complied with the law the courts have refused to enforce the collection of premium notes given for such insurance, and have also refused to enforce collection of assessments made on such notes and on liability in mutual policies, made for the purpose of paying losses and expenses, upon the ground that the contract was made in violation of law and therefore void. The same courts have, however, invariably held that an insurance company is bound on a policy so issued upon the ground that it is estopped from taking advantage of its own wrong or violation of law. If the law is violated by the one party to the contract agreeing to indemnify the other against loss or damage by fire, then it is also violated by the other party purchasing such indemnity. If the one party is guilty of violation of law, the other must be also. If the insurance company is to be held liable at all, it must be Judge Gresham was affirmed by Judge Drumheld liable by virtue of the terms of the policy mond, upon appeal from the U. S. District Court which constitutes the contract. In no case has it to the U. S. Circuit Court; and Judge Drummond, in been held liable for the amount of the policy as a his opinion affirming Judge Gresham, uses the strong penalty for violating the law. The amount recover- and significant language, that a person has a right able is determined by the loss or damage to the to purchase his insurance of indemnity against loss property embraced in the contract of indemnity. or damage by fire wherever he chooses, and it was But, if the insurance company is to be held es- a question in his mind whether or not the law could topped from pleading no liability on its part under rightfully prohibit him from purchasing such inthe contract so entered into between the two partiessurance or indemnity where he pleased. (Lamb, &c. upon the ground that it cannot take advantage of v. Bowser, 7 Biss.) its violation of the law, upon what legal or logical principle can the assured's plea of no liability under the same contract for procuring indemnity in violation of the law be sustained? If the assured is not Yet the Supreme Court in Wisconsin has held that a contract of insurance so executed in the State of Illinois was taken out from under ler loci contractus if the subject of insurance was an interest DEAD. in realty, and, therefore, fell under the provisions of MUTILATION OF THE REMAINS OF THE the valued policy law of that State, and that the contract fell under lex rei sitae. As respectable a court as the U. S. Supreme Court has held upon the application of lex rei sitae, that "the laws of the State where the land is situated control its descent, its devise, alienation and trans fer, and, therefore, the construction of instruments intending to convey it." As I have already stated, a contract of insurance is simply an agreement by the insurer to indemnify the assured against loss or damage by fire. It does not affect in any manner the acquisition or alienation of an interest in realty. The Supreme Court of Michigan has also declared that where a policy was executed in manner above stated, in the city of Milwaukee, and sent by mail to the assured in the State of Michigan on property located in that State, that it would not enforce the collection of assessments upon liability in the policy or under liability of premium notes, notwithstand ing the lex loci contractus, because there was evidently an intent to evade the laws of that State, prohibiting insurance companies organized under the laws of other States from doing business except in compliance with the requirements of that State. Even the Supreme Court of the prohibition State of Iowa has enforced the collection of contracts for the sale of intoxicating liquors. Under the law of the State of Iowa the sale of intoxicating liquors is prohibited except in manner and under restrictions prescribed; and all contracts: "sales, transfers, conveyances, mortgages, liens, attachments, pledges, and securities of every kind, which either in whole or in part shall have been made for or on account of intoxicating liquors sold in violation of this law shall be utterly null and void against all persons in all cases, and no rights shall be acquired thereby, and no action of any kind shall be maintained in any court in the State for intoxicating liquor or the value thereof," etc., and all payments for liquor sold in violation of the law may be recovered. An order for liquors was given in Iowa by a citizen of that State to a traveling salesman of a Chicago firm, and sent by the salesman to his principals to be filled, if they concluded to do so. The order was accepted and filled, and upon refusal by the Iowa man to pay, the Supreme Court of that State held the contract was made in the State of Illinois, and was therefore valid, and enforced it. We, therefore, see in the application by the courts of the different States of lex loci contractus discrimination is alone made against contracts of insurance or indemnity. Insurance contracts alone do not fall within the application of that law. The federal courts do not so hold. MYRON H. BEACH. THE development of jurisprudence by common interesting branches of our practice and many novel suits have recently been brought to a successful end which law-Sage suit in New York, which was just passed years ago would never have been begun. The Laidupon by the Appellate Division, is an action which has attracted much attention, and the case of Foley v. Phelps decided by Judge Patterson in the Appellate Division, is of peculiar note, because the same principles have never been before decided in this State and only once before in any American court. Judge Patterson in his opinion holds that a wife may recover damages for the unlawful dissection of the remains of her husband. The opinion practically follows Larson v. Chase, 47 Minn. 307. In Cook v. Wally, 27 Pac. R. 905, it was held to the contrary, but in this case it was shown that an autopsy was performed by a physician at the estab lishment of undertakers where the remains had been taken so as to enable the physician to give the certificate as to the cause of death. In the case just decided the question naturally arose as to whether a corpse is property, and it must also be observed that the Appellate Division have not attempted to determine what is the measure of damages. The opinion is particularly interesting and is as follows: The question presented in this case seems to be one of first impression in this jurisdiction, and comes before the court on appeal from a judgment over-ruling a demurrer to the complaint. Stated with precision the inquiry is, whether the defendant is liable civiliter, and to this particular plaintiff, for the unlawful dissection of the remains of her husband an act not only unlawful, but constituting, on the assumption that the facts alleged are true, a criminal offense. The complaint sets forth that on the 16th of May, 1894, the plaintiff's husband fell through an elevator shaft in a building in the city of New York, and was taken in an unconscious condition to the Bellevue hospital, where he died three hours after his admission; that the plaintiff was a loving and devoted wife, and was under the duty and obligation and had the right of burying her husband; that she applied at the hospital for his body, and begged and implored those who were in charge of it not to allow or permit an autopsy to be performed and gave notice that she would immediately send an undertaker for the body to remove it to her home, where it would be prepared for burial; that notwithstanding her request and protestations, the defendant, without her knowledge or consent, procured, assisted, aided and abetted in performing an autopsy on her husband's body, which autopsy was performed without any authority of law, and was willfully done by cutting open and otherwise abusing and maltreating the dead body. The complaint then proceeds to state matter intended to be in aggravation of damages and ends with a demand for a money judgment. The learned judge who decided this demurrer at the Special Term has given no statement of the views which prompted his decision, and we are therefore without the advantage of a preliminary judicial examination of the question involved; but we have reached the conclusion that the court below was right in overruling the demurrer on the case as it is stated in the pleading. The allegations of the complaint clearly establish an unlawful act on the part of the defendant. The unauthorized dissection of human remains is a misdemeanor, under the provisions of sections 308 and 309 of the Penal Code of this State. While it it is true that the provisions of the Criminal law neither give nor recognize a right to institute a civil suit for damages, still they incontestably determine the wrongful nature of the act complained of. There is a statute specially applicable to the case of a patient who dies, as this plaintiff's husband did, in one of the hospitals of the State. The act of 1854 (chapter 123), well known as the act to promote medical science, expressly prohibits the dissection of a dead body or its delivery to anyone for the purposes of dissection, if the relatives or friends of the deceased object, or if they make application within a certain time (as appears to have been done in this case) for the remains for the purposes of burial. the right rests exclusively with the next of kin, can hardly be construed as a judicial exclusion of the right of the widow." In this case it will be observed that the question is directly presented with reference to the duty and right the widow owes and has to and over the body of her dead husband prior to interment - that is, before the remains have passed beyond the necessity of human care and attention. It is provided by the Penal Code of this State that, except in cases specially provided for by law, the dead body of a human being lying within this State must be decently buried within a reasonable time after death. The duty must be performed by somebody. It has been held in this country that the primary duty of burying a deceased wife is upon the husband. (Weld v. Walker, 130 Mass. 423). And it has been expressly determined that if a husband and wife are living together at the time of the death of the former, the widow's right to the possession of the dead body, for the purposes of preservation and burial, is a right in the widow paramount to that of the next of kin. (Larson v. Chase, 47 Min. 307). We think, therefore, as a matter of law upon the facts as they are stated in this complaint, and without reference to the allegation of the plaintiff's duty and right, she may maintain this action, if it may be maintained at all. The foregoing observations are made to meet the possible suggestion that the allegation of the complaint respecting the duty and right referred to is merely one of a conclusion of law, and of course, if it is such, it is not admitted by the demurrer. But construing the words of the complaint with reference to this matter as we think they should be construed, they are equivalent to an allegation that, as a matter of fact, the plaintiff was the person upon whom had devolved the obligation and responsibility of complying with that require. ment of the law respecting the interment of human remains, to which reference has been made, and that the demurrer admits that she was such person. At the outset of the inquiry, the objection is taken to the maintenance of the action; that, assuming for the purposes of the argument a civil action will lie, the plaintiff has no standing in court to maintain it. This objection proceeds upon the idea that if anyone may bring an action of this character, it must be the next of kin. It has been stated in general terms in several cases, that, in This brings us to the consideration of the other the absence of testamentary direction on the part question involved, namely, that concerning the of the deceased, the exclusive right of burial and right to maintain an action at all. The ground of of designating the place in which human remains objection urged by the appellant is that there can shall be interred, is with the next of kin. Those be no such action because there can be no such cases are referred to and cited in an opinion of Mr. thing as property in human remains. By the comJustice LANDON in the case of Snyder v. Snyder mon law and stricti juris, the proposition as to prop(60 How. Pr. 370), aud in commenting upon them erty may be maintainable. A long line of judicial that learned judge says: "Most of the cases there decisions appear to have established a general docreferred to arise with respect to the right to protect trine to that effect; but courts of equity have frethe place where the remains were buried; to pre- quently interfered to protect the remains of the vent a disinterment, or to collect from the execu- dead, and courts of law have also afforded remetors, or relatives of the deceased, the expenses of dies through formal legal actions wherever any elethe funeral. In the absence of a contention prior ment of trespass to property, real or personal, was to burial, as to the right between relatives to desig-associated with the molestation of the remains of nate the place of burial, the broad doctrine that the dead. In more recent times the obdurate com mon law rule has been very much relaxed, and rea merely a personal right; yet who would now con- App.], 70 Fed. Rep. 874.) ADMIRALTY JURISDICTION MARITIME CONTRACT. - Upon the trial of a libel to recover a balance of freight, respondent paid into court a certain amount conceded to be due, and the evidence showed that the remainder consisted of money advanced by the steamship company to pay charges for railway trans and protect." The right is to the possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed and mutilated corpse as some stranger, an offender against the criminal law, may choose to turn over to an afflicted relative. If this right exists, as we think it clearly does, the in-portation of the goods from an interior town to the vasion or violation of it furnishes a ground for a civil action for damages. It is not a mere idle utterance, but a substantial legal principle, that wherever a real right is violated a real remedy is afforded by the law. A right to vote can in no sense be called a pure right of property-it is port at which they were taken by the vessel: Held, that in respect to these advances the contract sued on was not a maritime contract, and the libel must be dismissed for want of jurisdiction. (Pacific Coast Steamship Co. v. Ferguson [U. S. D. C., Cal.], 70 Fed. Rep. 879.] |